Summary of Human Rights Law, based on lessons taught by prof Lemmens

Human Rights Law
Chapter 1: Human Rights. Some introductory remarks
1.1 The concept of HR
 Rights that all persons have by virtue of their humanity: abstract
definition  how to they exactly operate?
o Gap between theory about HR & its practice
 Jacques Martin: member of commission of philosophers at
time preparation Universal Declaration HR (work together
on list HR: diverse backgrounds & cultural traditions)
 “Agree about rights, but on condition that no one asks
us why”
o Focus on normative legal dimension
o In general terms & need interpretation
 Question of understanding text in light of new
interpretations of general concepts
 New meanings by Strasbourg Court: mentalities change
 Actual debates, but moral debates >< legal discussions
HR

1.2 The function of HR
 Limitation of State sovereignty
o Externally: international law
o Internally: domestic constitutional law
 Constitutional protection precedes international protection HR
 Protection of citizens against arbitrary State power (1)
o Political view
o Institutional framework: minimal safeguards against abuse of
power authorities
 ECHR: handful absolute (unrestricted) rights  most rights
subject to limitation (not all restrictions acceptable per se)
 Protection of human dignity (2)
o Gained importance after WW2
 Ongoing bioethical revolution forced to reflect & HR
revolution
 German post-WW2 Constitution: art 1
 Ultimate defense against States imposing formally lawful
rules
o Not unproblematic: indeterminacy  who decides what dignity is?

,  Wackenheim case: local authorities refused permit to
organize dwarf-tossing event
 Mr. Wackenheim contested refusals: French Council of
State upheld prohibition (conventional, majoritarian
view of dignity)
 Issue of prostitution – sexism in public advertising
 Aims complete each other

1.3 The Essential Features of HR
 Absolute character: consequence of the idea of highest norms in legal
order (no norm above, set aside, restrict or limit)
o Notstandfeste rights: art 3 ECHR  no suspension in times of
emergency
o Most rights can be restricted on basis of explicit provision
 Universal character: global & timeless
o Beitz: difficult to maintain & different in reality
 Inalienable character: individuals cannot be deprived of their
fundamental rights
o Doesn’t imply that they cannot be restricted, conditioned or
suspended
 Political rights can be restricted depending on national
status
 Examples: confidentiality clauses – accepting cookies
o The wider the scope, the more likely holders will renounce the
protection
 Indivisible whole:
o Differentiation: generations of rights
 All HR interconnected: no category more important than
another

1.4 History of HR
 A post hoc rationalization: legal history  HR = historical rights
o Modern creations (Enlightment era), but medieval charters: Magna
Carta libertatum 1215
 Not unique: Charter of Kortenberg & Blijde Inkomst
 No protection individual rights all citizens: certain categories
of persons & collective bodies  privileges
 Habeas corpus: impact on development
o Important role in collective imaginary & reflections on HR

, o Steps in genesis of ideas leading to creation HR: important stages
in development
 Glorious Revolution: rebalancing powers  Bill of Rights 1689
o Profoundly national text
 American & French Revolution: questioning very nature of exercise
powers
o Declaration des droits de l’homme et du citoyen: first text with
collection of HR  abstract claims about individuals
 American Constitution
 Followed by many other States: BE Constitution 1831
 Focus on civil & political rights (Etat gendarme)  limiting
power public authorities: preventing arbitrary use of power
 Urgent social question (Marxists): living conditions of the masses
o Bourgeois freedoms
o Ensuring decent standard of life  dignified
o Up until then: major steps national in nature
 WW2: development of an international system of protection HR
o Set standards & creates venues
o International in broad sense: both regional & global mechanisms

1.5 Generations of HR
 Three categories (“generations”): Karel Vasak  pedagogical value
o 1st generation: political & civil rights (liberté)
 Rights people enjoy as human being & members political
community: ECHR
 Right to life, prohibition of torture, freedom of
expression/thought
 Idea of non-intervention: authorities must refrain from
interfering (Abwehrrechte)
o 2 generation: social, economic & cultural dimension (égalité)
nd

 Focus on material circumstances of living life
 Right to housing, to health care & education
 Focus on citizens who claim benefits from public authorities
 European Social Charter
o 3 generation: collective rights (fraternité)
rd

 Right to development, right to peace
 More recent date
 Outspoken international dimension
 All related & not artificially disentangled
 Important differences:

, o 1st generation rights:
 Primary role assigned to authorities  negative obligations
 Interferences possible: three conditions
o Legal basis
o Pursue legitimate aim
o Relationship of proportionality between aim
pursued & means chosen
 Fairly easy to bring before courts
 Obligation of immediate nature: no important budgetary
consequences
o 2 generation rights:
nd

 Positive measures: “claim-right”
 Provide access to services
 More difficult to assess: sufficient? Minimum standards?
 Deferential attitude judges
 Progressive realization: fulfillment takes time
 Important budgetary efforts
o 3 generation rights: share some points with 1st & 2nd + specific
rd

features as well
 Focus on positive duties & active intervention
 Exercised by collectivities
 Categorization overemphasis the differences
 Not overstate relevance of categorization: rather matter of degree than
of principle
o Right to fair trial: positive obligation but 1st generation right
 Overlapping possible:
o Right to establish labour unions
o Right to a health environment
 Strict interpretation: 3rd generation right
 Second-generation rights include aspects typical for first-generation
rights (equality & non-discrimination)

1.6 Holders of HR
 Human beings without any further requirement (legal status/residence
permit)
o Incorrect to limit to human beings only: associations &
organizations
 Companies & religious communities

1.7 Horizontalization of HR – Bearers of HR